| 12.1.1 | Subject to the provisions of this regulation, or any other legislation or agreement, the state will bear its own damages and accident risks and be responsible for all claims and losses of state property where these arise from state activities by an official who is liable in law and who is or was employed by an institution. |
| 12.1.2 | Notwithstanding paragraph 12.1.1, the accounting officer of an institution may (if deemed economical and based on a risk assessment) insure motor vehicles, including hired vehicles, or such other movable assets determined by the relevant treasury, but the insurance premium cost may not exceed R250 000 a year on that vote, unless otherwise approved by the relevant treasury. |
12.2 Claims against the state through acts or omissions [Section 76(1)(h) of the PFMA]
| 12.2.1 | An institution must accept liability for any loss or damage suffered by another person, which arose from an act or omission of an official as a claim against the state and does not recover compensation from an official, provided the official shall forfeit this cover if he or she, with regard to the act or omission, is liable in law and— |
| (a) | intentionally exceeded his or her powers; |
| (b) | made use of alcohol or drugs; |
| (c) | did not act in the course and scope of his or her employment; |
| (d) | acted recklessly or intentionally; |
| (e) | without prior consultation with the State Attorney, made an admission that was detrimental to the state; or |
| (f) | failed to comply with or ignored standing instructions, of which he or she was aware of or could reasonably have been aware of, which led to the loss, damage or reason for the claim, excluding damage arising from the use of a state vehicle; and |
| (g) | in the case of a loss, damage or claim arising from the use of a state vehicle, the official – |
| (i) | used the vehicle without authorisation; |
| (ii) | did not possess a valid driver’s licence or other appropriate licence; |
| (iii) | did not use the vehicle in the interest of the state; |
| (iv) | allowed unauthorised persons to handle the vehicle; or |
| (v) | deviated materially from the official journey or route without prior authorisation; |
| 12.2.2 | If in doubt, the accounting officer of the institution must consult the State Attorney on questions of law on the implementation of paragraph 12.2.1. |
| 12.2.3 | Where an official has forfeited his or her cover in terms of paragraph 12.2.1, the amount paid by the institution for the loss, damage or claim arising from an act or omission must be recovered from the official concerned. |
| 12.2.4 | The State Attorney may only obligate the funds of an institution with the prior written approval of the accounting officer. |
| 12.3 | Claims by the state against other persons |
| 12.3.1 | If the state suffers a loss or damage and the other person denies liability, the accounting officer must, if deemed economical, refer the matter to the State Attorney for legal action, including the recovery of the value of the loss or damage. |
| 12.4 | Claims by officials against the state |
| 12.4.1 | If an official sustains a loss or damage in the execution of official duties and is not compensated, the accounting officer may make good the loss or damage provided that the official can prove such loss or damage. |
| 12.5 | Losses or damages through criminal acts or omissions [Section 76(1)(f) of the PFMA] |
| 12.5.1 | When it appears that the state has suffered losses or damages through criminal acts or possible criminal acts or omissions, the matter must be reported, in writing, to the accounting officer and the South African Police Service. If liability can be determined, the accounting officer must recover the value of the loss or damage from the person responsible. |
| 12.5.2 | The accounting officer may write off losses or damages arising from criminal acts or omissions if, after a thorough investigation, it is found that the loss or damage is irrecoverable. |
| 12.5.3 | When movable assets are written off, this must be noted in the asset register. |
| 12.6 | Losses and damages through vis major and other unavoidable causes [Section 76(1)(e) of the PFMA] |
| 12.6.1 | The accounting officer may write off losses and damages that result from vis major and other unavoidable causes. |
| 12.7 | Losses or damages through acts committed or omitted by officials [Sections 76(1)(b) and 76(4)(a) of the PFMA] |
| 12.7.1 | Losses or damages suffered by an institution because of an act committed or omitted by an official, must be recovered from such an official if that official is liable in law. |
| 12.7.2 | The accounting officer must determine the amount of the loss or damage and, in writing, request that official to pay the amount within 30 days or in reasonable instalments. If the official fails to comply with the request, the matter must be handed to the State Attorney for the recovery of the loss or damage. |
| 12.7.3 | A claim against an official must be waived if the conditions in paragraph 12.2.1(a) to (g) are not applicable. |
| 12.7.4 | If in doubt, the accounting officer of the institution must consult the State Attorney on questions of law in the implementation of paragraphs 12.7.1 and 12.7.3. |
